Europe at Struggle with Social Welfare

• Published date: 01 May 2007
• Author: Paul Schoukens
• Date: 01 May 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00373.x

REVIEW ARTICLE

EU Law and the Welfare State: In Search of Solidarity. Edited by Gráinne de Búrca.

Oxford: Oxford University Press, 2005. xxxi +250pp. Hb. £64.95; Pb. £29.95.

Social Welfare and EU Law. Edited by Michael Dougan and Elena Spaventa. Oxford

and Oregon: Hart Publishing, 2005. x +290pp. Hb. £38.50.

Europe at Struggle with Social Welfare

Paul Schoukens*

Introduction

With these two rather new publications, social welfare is again brought under the

attention of EU lawyers. Indeed, in the last decade, a great amount of case-law

stemming from the European Court of Justice (ECJ) has challenged the fundamentals

of our welfare regimes. The original idea that national social security systems are

beyond the control of the EU is gradually fading away. And although the ECJ has

repeatedly stated that social security remains in the f‌irst place a competence of the

Member States,1at the same time it has clearly articulated that this does not preclude

the need for Member States to respect EC law. To put it differently: when states design

social welfare regimes on a national level, they should do so in a way that is consistent

with Community law. The latter is mainly characterised by an economic nature, which

envisages implementing the European internal market, one of the EU’s major objec-

tives. The best known cases ref‌lecting these considerations are probably Kohll and

Decker,2where the court stated that a rule requiring prior authorisation from the

competent healthcare fund in order to obtain treatment abroad, and to be refunded by

the national health insurance system, obstructs free movement in relation to goods and

services as enshrined respectively in the Articles 28 and 49 of the EC Treaty. The ECJ

had already made these observations prior to these two healthcare cases, but the facts

behind Kohll and Decker were apparently so down to earth—patients wanting to be

treated abroad and then to have this treatment refunded by their health system—that

it came to the attention of the public at large.

In the same period, yet originally less spectacular than the healthcare cases, the ECJ

stated in the Martinez Sala case that states could not discriminate citizens from other

* Professor of Law, Research Unit Europe and Social Security, Katholieke Universiteit Leuven.

1In accordance with the Treaty, the EC can only complement and support the national competencies of the

Member States in the social f‌ield. Moreover, it should never affect the fundamental principles nor the

f‌inancial equilibrium of our national social security systems (Article 137(4) of the EC Treaty).

2Case C-102/95, Decker [1998] ECR I-1831; Case C-158/96, Kohll [1998] ECR I-1931.

European Law Journal, Vol. 13, No. 3, May 2007, pp. 424–433.

© 2007 The Author

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

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